Home ยป Articles ยป Case ยป Licensing Requirements ยป City of Littleton v. Z.J. Gifts D-4, L.L.C.(2004)

Written by John R. Vile, last updated on September 19, 2023

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In City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), the Supreme Court upheld a Littleton, Colorado, adult business licensing ordinance against an adult bookstore. The store had launched a facial challenge to the law rather than applying for a license that would have permitted such a store in a location not zoned for such adult businesses. In this photo, an unidentified man enters an adult bookstore on 8 Mile road near the Southfield, Mich., border, Oct. 30, 2002. (AP Photo/Paul Warner, used with permission from the Associated Press)

In City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), the Supreme Court upheld a Littleton, Colorado, adult business licensing ordinance against an adult bookstore. The store had launched a facial challenge to the law rather than applying for a license that would have permitted such a store in a location not zoned for such adult businesses.

 

Case dealt with ‘prompt judicial review’ v. ‘prompt judicial determination’

 

The decision lowered a cityโ€™s burden with respect to providing โ€œprompt judicial review,โ€ as articulated in Freedman v. Maryland (1965), in adult business licensing decisions.

 

Littleton had claimed that it was sufficient to guarantee โ€œprompt accessโ€ to judicial review of a license denial rather than a โ€œ โ€˜prompt judicial determinationโ€™ of the applicantโ€™s legal claim.โ€ Justice Stephen G. Breyer, writing for the Court, rejected this notion, but accepted the cityโ€™s claim that its law satisfied โ€œany โ€˜prompt judicial determinationโ€™ requirement.โ€

 

Court said law satisfied ‘prompt judicial determination’ requirement

 

In rejecting the cityโ€™s first claim, Breyer refused to accept the distinction that the city had tried to make between the decisions in Freedman v. Maryland (1965) and FW/PBS, Inc. v. City of Dallas (1990), respectively, striking down prior restraint of movies and a scheme for licensing sexually oriented businesses.

 

Breyer saw no evidence, however, that the courts would not provide prompt decisions. He observed first that โ€œordinary court procedural rules and practices, in Colorado as elsewhere, provide reviewing courts with judicial tools sufficient to avoid delay-related First Amendment harm.โ€ Breyer saw no reason โ€œto doubt the willingness of Coloradoโ€™s judges to exercise these powers wisely so as to avoid serious threats of delay-induced First Amendment harm.โ€

 

Court upheld ordinance

 

He also observed that the licensing scheme at issue involved โ€œreasonably objective, nondiscretionary criteria unrelated to the content of the expressive materials that an adult business may sell or displayโ€ and that the city was not required specifically โ€œto place judicial review safeguards all in the city ordinance that sets forth a licensing scheme.โ€

 

In a concurring opinion, Justice Antonin Scalia suggested that โ€œthe notion that media corporations have constitutional entitlement to accelerated judicial review of the denial of zoning variances is absurd.โ€

 

He further linked the business at issue to pandering, which on the authority of Ginzburg v. United States (1966) he did not believe had constitutional protection. Justice John Paul Stevens wrote a separate concurring opinion adding that the First Amendment was relevant to this licensing scheme and that the law needed to ensure more than the more โ€œpossibility of a prompt decision.โ€

 

Justice David H. Souter, joined by Anthony M. Kennedy, wrote another concurring opinion, asserting that because the law did not involve โ€œfull-blown censorship,โ€ it โ€œdoes not need a strict timetable of the kind required by Freedman v. Maryland . . .to survive a facial challenge.โ€

 

John Vile is professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.

 

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